In our last article concerning vaccinations in the workplace, we posed the question of whether vaccines should be mandated or not. Now, less than six (6) months later, the City of New York has mandated that all private employers require employees who perform in-person work or interact face-to-face with the public in the course of business to be vaccinated. This new law came into effect in the City of New York on December 27, 2021 and has been continued by the new City administration under Mayor Eric Adams. The Federal Government, through the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) on Vaccination and Testing (29 C.F.R. 1910.501), is prepared to follow suit with a similar mandate for private employers with over 100 employees. The Federal implementation has been much more complex due to legal challenges which have delayed its full roll out and implementation but all employers should expect that it is merely a matter of time, depending on the Supreme Court’s ruling following the oral arguments scheduled for January 7, 2022.
If any of your staff either comes into an office or other facility within the boundaries of the City of New York, which consists of the five (5) boroughs (Manhattan, Bronx, Brooklyn, Queens, and Staten Island), she/he/they/them must be vaccinated unless they submit a documented and substantiated religious or medical exemption. In fact, an employer can deny the accommodation if it places an undue burden on the employer. Unlike the Federal Law, which is in the midst of court challenges, the New York City mandate does not limit its impact by the size of the private employer.
Private employers that have employees working in multiple jurisdictions may find it cumbersome to issue and implement policies and procedures to follow specific city laws, rules and regulations, as opposed to one standard for all jurisdictions and border areas. All private employers must decide if they want to implement testing and masking policies to ensure the health and welfare of their staff, as well as to avoid unnecessary interruptions in their day-to-day operations. As of this date January 5, 2022, one (1) in six (6) people in New York State are testing positive for COVID-19, which means that the isolation/quarantine periods may be already adversely impacting your workflow and staff productivity. Therefore, our offices recommend that you implement policies and procedures that create uniformity and consistency in a time where it is much needed, not only in the workplace but in our lives as well. You should create a policy that fits with your team and your team leadership as the key is having a policy that is easily understandable, compliant with applicable laws, rules and regulations, and it is easy to enforce and implement on a daily basis.
Also, remember that in our last blog regarding COVID-19 vaccination emergency use approval, the Food and Drug Administration (“FDA”) had not given such authorization. However, Moderna, Pfizer and Johnson & Johnson, to name a few, are now approved for emergency use and even have been approved for children between the ages of five (5) and eighteen (18). Boosters have also been approved by the FDA. These approvals by the FDA should reduce your hesitancy to impose a vaccine mandate on your team which would not only ensure compliance of your business with the law but create uniformity in your workplace regarding vaccination policy.
As an employer, it is important that you consult your professionals to make sure that you are in compliance with applicable laws, rules and regulations, which are ever changing due to the mutability and high contagiousness of this virus.